COMMONWEALTH vs. MARTINA MARCHAND.

18 Mass. App. Ct. 932

July 16, 1984

The case was submitted on briefs.

William D. Delahunt, District Attorney, & Charles J. Hely, Assistant District Attorney, for the Commonwealth.

Ronald F. Martignetti for the defendant.

After an evidentiary hearing, a District Court judge allowed the defendant's motion to dismiss a charge of vehicular homicide for insufficiency in the delivery of the citation. See G. L. c. 90C, Section 2, third par., as amended by St. 1968, c. 725, Section 2. The Commonwealth has appealed.

On Monday afternoon, September 26, 1983, in Stoughton, the defendant's vehicle was involved in an intersection accident with another vehicle. The operator of the other vehicle was seriously injured and died the next day. Officer McCarter of the Stoughton police investigated at the scene and issued no citation for any motor vehicle law violation that day. The next day, after learning that the other operator had died, McCarter investigated further, consulted with a registry inspector, and delivered a citation to the defendant for operating so as to endanger. (The trial of the endangering charge has been stayed pending resolution of this appeal.) It was not until November 7, 1983, however, some forty-one days later, that McCarter

Page 933

issued a second citation to the defendant for vehicular homicide. McCarter conceded that no further investigation occurred after September 27, that he knew the requirements of G. L. c. 90C, Section 2, third par., and that he issued the second citation only after being advised to do so by the Stoughton police prosecutor and an assistant district attorney.

This case is governed by the latter principle. The facts demonstrate serious inattention by the police or at best an "unexplained mistake," Commonwealth v. Mullins, 367 Mass. at 736, and the oversight is not amenable to correction under any of the exceptions enumerated in the third paragraph of G. L. c. 90C, Section 2. The failure of compliance with the statute entitles the defendant to the dismissal she sought without a showing that she has been prejudiced.